So far, Oregon land-use measure is more bark than bite

Thanks to a set of strict, generation-old land-use
laws, Oregon has escaped much of the scattered "exurban"
development common in other Western states. But sprawl fighters
feared the worst last November, when voters passed a ballot measure
that could unleash development across the state (HCN, 11/22/04:
Election Day surprises in the schizophrenic West).

Measure 37 says that if land-use regulations diminish the value of
property by limiting development, the regulating agency must either
pay the owner for the lost value, or waive the rules and allow new
development. Its passage has led to about 1,000 claims from
landowners who say county and state governments need to pay up or
butt out. The most notable claims come from around the Willamette
Valley, in the high desert around Bend, and near the fast-growing
town of Hood River in the Columbia Gorge.

Portland widow
Dorothy English, 92, garnered wide support for the measure with her
personal story and radio rallying cry, "I’ve always been
fighting the government, and I’m not going to stop!" On May
12, she won state permission to create eight new lots on her 19
acres of land. Maralynn Abrams, another avid Measure 37 supporter,
filed a claim late last year, seeking permission to build hundreds
of houses and commercial developments on 345 acres of farmland on
the outskirts of McMinnville. Two brothers who live near the small
farm town of St. Paul have proclaimed their intent to develop,
among other things, a casino. (That particular vision is considered
highly unlikely to bear fruit.) And a proposal in lightly
populated, farm-oriented Polk County contemplates a
million-square-foot shopping center.

Most of these claims
are tied up in local and state bureaucracies. But Lane Shetterly,
director of the state Department of Land Conservation and
Development, says that of the 378 cases which had reached his
office by the end of May, most are for exurban development.

"The potential is significant," he says. "In fact, of
claims we’ve received, 95 percent are for some form of land
division. Those would be typically rural claims."

Many
claims, however, involve small issues, like requests to place a
single house or guest cabin on a piece of farm property. Such
projects were often barred under the old land-use laws. And all of
those laws, heated rhetoric notwithstanding, do remain in place. So
do provisions related to health, safety and other concerns, any of
which may limit property use without triggering a need for payments
or waivers.

Measure 37 has not turned out to be as
liberating as some property-rights advocates had hoped. Waivers are
allowed only when land-use rules change after a landowner obtains
the property; many claims have been rejected because owners sought
waivers for rules already in place when they acquired the land.

Some farmers who hoped to sell land to housing developers
were dismayed by a March 1 opinion from Attorney General Hardy
Myers, who concluded that development waivers aren’t
transferable. A farmer could get a waiver allowing development, for
instance, but as soon as he sells to a developer, the waiver is
moot, and all current land-use rules come back into effect, in
Myers’ view.

The Oregon Legislature has been
wrestling with revisions to the law. The most debated measure as of
May is Senate Bill 1037. In the interest of trying to clear both a
Democratic state Senate and a Republican state House, the measure
would allow development rights to be transferred from one owner to
another, but also limit property division sizes, and keep owners
from filing claims on some coastal and other property. The editors
of the Oregonian newspaper and the nonprofit
1000 Friends of Oregon, warn, however, that the much-amended
legislation could create more land-use problems than it would
solve.

Sprawl busters, including several county Farm
Bureau organizations, have also mounted a legal challenge. They
argue that Measure 37 is unconstitutional because it treats
landowners differently, depending on when and how they obtained
their property. The case is pending before a Marion County judge.